Mickey Mouse for President? The Law of Write-In Voting

Many voters this year have expressed dissatisfaction with both major party candidates. My own politically precocious 12-year-old has grilled me about the viability of several third-party candidates (to which questions I replied with Socratic questions of my own until he gave up and did his own research that, incidentally, led to an article in his school paper giving a thumbnail sketch on Clinton, Trump, Johnson, Stein, and McMullin).  But even he did not profile the ubiquitous write-in protest vote (for a voter's favorite defeated primary candidate or a voter's mother or, as in one case, a voter's deceased dog).  Apparently, a few poll workers in Kansas were instructed to tell voters that "write-in votes don't count," but the actual rule varies by state.  It is worth considering the applicable rule before you write in anyone, however, because it very well may be that writing in a random name is, literally, throwing away your vote (meaning, it is actually thrown out).  There is a lot of misinformation about this out there, so I did a little bit of research this morning and here's what I came up with (this from a non-election law expert, so please be gentle).

States can (and many do) prohibit or limit a voter's ability to write in a candidate on the ballot. Kansas, for example, is one of the states that seems to limit one's ability to vote, restricting your choices to (a) the enumerated candidates or (b) those write-in candidates that have filed with the KS secretary of state an "affidavit of write-in candidacy for the offices of president and vice-president" before "12:00 noon on the 2nd Monday preceding the general election for those offices." For this election, that means that in order for a vote for a particular write-in candidate to be considered (and count) in Kansas, that write-in candidate must have filed this affidavit before October 24th. Kan. Stat. Ann. § 25-305 (West). This statute has been tested and upheld by the 10th circuit on the basis of a state's interest in voter education (Hagelin for President Comm. of Kansas v. Graves, 25 F.3d 956, 960 (10th Cir. 1994)). 

Limits on a voter's ability to write-in a candidate may seem unconstitutional to you (and to me), but it has been upheld by the Supreme Court (Burdick v. Takushi, 504 U.S. 428, 441 (1992)). The Supreme Court case upheld Hawai'i's ban on write-ins. Oklahoma's complete ban on write-in votes for presidential and vice-presidential elections was deemed constitutional in Coalition for Free and Open Elections, Prohibition Party v. McElderry, 48 F.3d 493 (10th Cir. 1995). The Supreme Court denied certiorari in that case. Other states have now and in the past completely banned write-ins as well, but the more common approach seems to be to require registration or to state that ballots that are not printed legibly won't be counted (well, duh!).

In Kansas, voters are not completely barred from writing in candidates in a presidential election, but only votes for registered candidates will count. (FYI, Kansans are also barred from writing in to indicate affiliation with a non-enumerated party in their voter registration. This rule was upheld by a federal court in 2011 and affirmed by the 10th circuit. Constitution Party of Kansas v. Biggs, 813 F. Supp. 2d 1274, 1276 (D. Kan. 2011), aff'd sub nom. Constitution Party of Kansas v. Kobach, 695 F.3d 1140 (10th Cir. 2012)).  

People are often confused about write-in rules, particularly since states apparently change them periodically and since they vary widely among jurisdictions. It doesn't help when poll workers are told that "write-ins are illegal," which of course they are not (what, are you going to be fined because you write a candidate in? I can't believe that ever would be the case!).   

All this raises a good question that a friend of mine articulated - Why on earth would anyone write in an unregistered candidate at all? Someone who hasn't announced he or she is running for President and who likely will get all of ONE vote (yours)? Well, in cases that have considered the question of legality of write-in bans from the point of view of the voter, rather than the candidate, the right to write-in is equated, once again, to a type of free speech.  The idea is, of course, that a vote for "Mickey Mouse" is a protest vote, a "none-of-the-above" vote, and that casting this sort of vote should have some sort of speech-related impact, something beyond staying home on Election Day.  This sort of speech could only have any actual effect if write-in protest votes were to be aggregated, tabulated, and announced.  If 10% of voters wrote in some random protest name at the polls, say, perhaps that fact in itself could be newsworthy and suggest a high level of dissatisfaction with the process and candidates.  If you have a write-in ban or limitation to registered (or real, live) people, however, then you lose the ability to be part of this sort of collaborative, grassroots protest voting speech.

Thus, even though I really, really want to write in Lin Manuel Miranda for President (because how awesome would that be!?), I guess I will have to restrain myself tomorrow. 

Happy Voting, everyone!